Behavioral Control
The Behavioral Control category of evidence is comprised of facts that illustrate whether there is a right to direct or control how the worker performs the specific task for which he or she is engaged. The two main factors addressed within this category are instructions and training.
Instructions
The new training materials recognize that every business will impose instructions on workers, whether independent contractor or employee. The weight to be given to these instructions by a revenue officer when analyzing any case depends on the degree to which instructions apply to how the job gets done, rather than the end result. The degree of instruction depends on the scope of instructions, the extent to which the business retains the right to control the worker's compliance, and the effect of noncompliance. Absence of detail of instruction reflects less control.
A notable change from the Service's past approach to the issue of instruction relates to instructions mandated by third parties. In the past the Service often took the position that the source of the instruction was irrelevant. Thus, any type of instruction was an indication of control. Under the new approach, examiners are told that little weight should be given to instructions that consist of the business requiring a worker to comply with rules established by a governmental agency or governing body. Additionally, it appears that little weight should be given to instructions mandated by customers if the independence of the instructions remains intact.
A suggestion does not constitute the right to direct and control. For example, a dispatcher who suggests an alternate route to avoid road congestion is not giving an instruction, but instead is making a suggestion. A suggestion can be accepted or ignored. Mandatory suggestions are instructions.
Another notable change from the Service's previous position relates to business identification as a form of instruction. In the past, identification with a business, such as uniforms or placing a business name on a vehicle, was given great weight. However, in view of increasing safety concerns, examiners are advised that identification with a business is a neutral fact if the nature of the worker's occupation is such that the worker must be identified with a business for security reasons.
Training
The second factor in the Behavioral Control category is training. Training is a classic means of explaining details, methods, and procedures. In conformity with the 20 Factor Test, the new materials reaffirm that periodic or on-going training is strong evidence of control. However, contrary to the Service’s approach in the past, the new training materials recognize that not all training is evidence of control. Orientations, or information about business policies, new product lines, or applicable statutes or government regulations, as well as non compensated programs attended voluntarily by workers are neutral evidence that should be disregarded by the examiner.
Bluestein & Muhlbauer, P.C.
333 International Drive
Williamsville, NY 14221
716.633.3200
